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STATE SENATE CANDIDATE, WHO REGISTERED TO VOTE IN WASHINGTON DC IN 2014, DID NOT MEET NEW YORK’S FIVE-YEAR CONTINUOUS RESIDENCY REQUIREMENT, THIRD DEPT REVERSED.

The Court of Appeals, reversing the 3rd Department, determined the fact that petitioner (Glickman), a candidate for the state senate, had registered to vote in Washington DC in 2014 precluded him, as a matter of law, from establishing the required five-year continuous residency in New York:

… [W]e conclude that Glickman lacked the requisite intent to establish residency for the five years required by our Constitution. A person is permitted to have more than one residence, but is not permitted to have more than one electoral residence. Under the Washington, D.C. law, a “qualified elector” is defined, in part, as one who attests that he or she “[h]as maintained a residence in the District for at least 30 days preceding the next election and does not claim voting residence or right to vote in any state or territory” (DC Code §§ 1-1001.02 [2] [C]; 1-1001.07 [a] [2]). Thus, when Glickman registered to vote in Washington, D.C., he was required to attest that Washington, D.C. was his sole electoral residence and that he did not maintain voting residence in any other state. These factors clearly demonstrate that Glickman broke the chain of New York electoral residency which did not recommence until he registered to vote in New York in 2015. Thus, he cannot claim New York residency for the past five years as required by the State Constitution, and Supreme Court properly invalidated the designating petitions on that basis. Matter of Glickman v Laffin, 2016 NY Slip Op 05842, CtApp 8-23-16

ELECTION LAW (STATE SENATE CANDIDATE, WHO REGISTERED TO VOTE IN WASHINGTON DC IN 2014, DID NOT MEET NEW YORK’S FIVE-YEAR CONTINUOUS RESIDENCY REQUIREMENT, THIRD DEPARTMENT REVERSED)/RESIDENCY REQUIREMENT (ELECTION LAW, STATE SENATE CANDIDATE, WHO REGISTERED TO VOTE IN WASHINGTON DC IN 2014, DID NOT MEET NEW YORK’S FIVE-YEAR CONTINUOUS RESIDENCY REQUIREMENT, THIRD DEPARTMENT REVERSED)

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DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS.

[REVERSED BY COURT OF APPEALS—SEE AUGUST 29 “JUST RELEASED’ PAGE] The Third Department, over a two-justice dissent, reversing Supreme Court, determined that a candidate for State Senator (Glickman) met the five-year New York residency requirement, despite Glickman’s having registered to vote in Washington D.C. in 2014:

… [T]estimony presented at the hearing, which Supreme Court found credible, established that Glickman left his father’s home in Tonawanda, New York in 2007 in order to attend college and graduate school in Maryland and, eventually, moved to the Washington, D.C. area. During this time, Glickman returned to his father’s home multiple times a year. He kept personal belongings at the Tonawanda home and continued to use that mailing address for his driver’s license, credit card and bank statements, and other bills. Glickman also retained his doctor and dentist in New York during the period in question, as well as maintained his membership in a New York synagogue, where he participated in services, including being the Shofar blower in the Jewish New Year services each year since 2007. Following the purchase of a vehicle in 2013, Glickman stored that vehicle in his father’s garage during the winter months.

From October 2013 until March 2015, Glickman lived in a “community organizer’s house” in Washington, D.C., during which time he was employed on a yearly basis with a consulting firm and as a part-time high school teacher. Glickman testified that, although the better job opportunities remained in Washington, D.C., he was looking to return to New York. In March 2015, Glickman returned to his Tonawanda home and, in May 2015, he re-registered to vote there. In October 2015, Glickman moved and changed his voter registration to 207 Milburn Street in Rochester, New York, where he has signed two consecutive leases. Glickman bought furniture for his home on Milburn Street, paid utilities and had bills sent there, and changed the address on his license to that address.

Under the circumstances here, the evidence adduced regarding compliance with the five-year residency requirement demonstrates Glickman’s “legitimate, significant and continuing attachments” in order to establish New York as his residence for Election Law purposes … . Even if Glickman had registered and voted in Washington, D.C., based on how New York courts have interpreted Election Law § 1-104 (22), that, in and of itself, does not demonstrate as a matter of law that he intended to abandon his New York residence at the precise point of registering … . Because objectors failed to establish by clear and convincing evidence any “aura of sham” in Glickman’s electoral residency for the purpose of obtaining the candidacy … , the petitions should not have been invalidated. Matter of Glickman v Laffin, 2016 NY Slip Op 05841, 3rd Dept 8-18-16

ELECTION LAW (DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS)/RESIDENCY (ELECTION LAW, DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS)

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GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA.

The Third Department, over an extensive dissent, determined: (1) a claim of grand juror bias is forfeited by a guilty plea; and (2) erroneous advice from defense counsel indicating the issue was appealable the guilty plea provided defendant with a ground for moving to withdraw his plea:

Inasmuch as defendant’s misunderstanding as to his ability to appeal the juror bias issue was brought to County Court’s attention at sentencing, we find that defendant’s challenge to the voluntariness of his plea has been sufficiently preserved for our review … , notwithstanding the absence of an appropriate postallocution motion. Once County Court learned that defendant had been given erroneous advice by counsel, the court should have conducted a further inquiry to ascertain whether defendant wished to go forward with the plea … . Absent such inquiry by County Court, and in light of the fact that the record otherwise presents “a genuine issue of fact as to the knowing, intelligent and voluntary nature of defendant’s guilty plea” … , this matter must be remitted to County Court to afford defendant an opportunity to either accept the plea that was offered or move to withdraw his plea … . People v Clark, 2016 NY Slip Op 05831, 3rd Dept 8-18-16

CRIMINAL LAW (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/ATTORNEYS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)

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PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION.

The First Department, in a full-fledged opinion by Justice Friedman, determined a publicity agent for a broadway show breached the covenant of good faith and fair dealing implicit in the agent’s contract with the show’s producer. The agent, Thibodeau, sent emails to an investor which were intended to sink the project, and the investor pulled out. The defamation and tortious interference causes of action will go to trial. But the breach of contract cause of action was demonstrated as a matter of law. The plaintiff is a limited partnership formed to put on the show, RBLP:

The record establishes that Thibodeau, without RBLP’s authorization, and using confidential information he had obtained as a result of his employment as RBLP’s press representative, sent an email directly to Runsdorf, a key potential investor who had desired to remain anonymous, causing Runsdorf to withdraw his financial commitment, all of which resulted in the cancellation of rehearsals and the play’s failure to open. Even assuming that his conduct did not violate the express terms of his agreement to act as the play’s press representative, Thibodeau breached the implied duty of good faith and fair dealing by essentially defeating the purpose of the agreement by his actions … . Thibodeau was hired by RBLP to use his public relations skills to facilitate the production of a play; his actions, in which he made use of confidential information that RBLP had entrusted to him in the course of his employment, made it impossible for RBLP to produce the play as planned. It is difficult to imagine a plainer case of a party to a contract utterly defeating the purpose for which the other party had entered into that contract, or a more blatant example of an agent’s disloyalty to his principal .. . Rebecca Broadway L.P. v Hotton, 2016 NY Slip Op 05839, 1st Dept 8-18-16

CONTRACT LAW (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/COVENANT OF GOOD FAITH AND FAIR DEALING (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/DEFAMATION (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)/TORTIOUS INTERFERENCE WITH CONTRACT (PUBLICITY AGENT FOR A BROADWAY SHOW BREACHED THE COVENENT OF GOOD FAITH AND FAIR DEALING BY SENDING EMAILS TO AN INVESTOR DESIGNED TO SINK THE PRODUCTION)

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LAW OFFICE FAILURE DEEMED A REASONABLE EXCUSE, DEFAULT JUDGMENT VACATED.

The First Department determined law office failure was a proper basis for vacating a default judgment (the underlying case was deemed meritorious):

Under certain circumstances, law office failure may provide a reasonable excuse for a default … . At oral argument, respondents essentially conceded that, in this e-filed case, their office failed to regularly check its email and, as a result, was unaware of the motion court’s order that gave rise to the default. Respondents’ excuse was sufficiently particularized and there is no evidence of wilful or contumacious conduct on their part … . Matter of Rivera v New York City Dept. of Sanitation, 2016 NY Slip Op 05837, 1st Dept 8-18-16

CIVIL PROCEDURE (LAW OFFICE FAILURE DEEMED A REASONABLE EXCUSE, DEFAULT JUDGMENT VACATED)/DEFAULT JUDGMENT (LAW OFFICE FAILURE DEEMED A REASONABLE EXCUSE, DEFAULT JUDGMENT VACATED)/LAW OFFICE FAILURE (LAW OFFICE FAILURE DEEMED A REASONABLE EXCUSE, DEFAULT JUDGMENT VACATED)

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FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF.

The First Department, over an extensive two-justice dissent, determined the evidence did not support the finding, by the New York State Liquor Authority, the licensee was aware of the presence of illegal drugs on the licensed premises. The decision is instructive about the “substantial evidence” standard of proof in administrative proceedings. The majority held the “substantial evidence” standard was not met:

The dissent points to the testimony of petitioner’s head of security that when security guards were on patrol they would sometimes have a staff member, who was not trained to pat people down, watch the door, as allowing an inference to be drawn that lax security measures led to the presence of drugs at the scene. This however, is purely speculative and not based on the record. The quantity of drugs recovered was very small. The uncontroverted police testimony was that the drugs could easily been have secreted on an individual. There was no evidence that the patrons entering the premises were not subjected to a patdown or that given the packaging, a patdown would have detected drugs. Substantial evidence, which has been characterized as a “minimal standard” or as comprising a “low threshold,” must consist of such relevant proof, within the whole record, “as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … , it does not, however, “rise from bare surmise, conjecture, speculation or rumor” … . Matter of Home Run KTV Inc. v New York State Liq. Auth., 2016 NY Slip Op 05834, 1st Dept 8-18-16

ADMINISTRATIVE LAW (FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/EVIDENCE (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/NYS LIQUOR AUTHORITY (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)/LIQUOR LICENSE (ADMINISTRATIVE LAW, FINDING THAT LIQUOR LICENSEE WAS AWARE OF THE PRESENCE OF DRUGS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; RARE DISCUSSION OF THAT ADMINISTRATIVE PROCEEDING STANDARD OF PROOF)

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LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE.

The Second Department determined the lessee of property abutting a sidewalk and the city (NYC) were entitled to summary judgment in this slip and fall case. The city argued it did not have prior written notice of the hole in the sidewalk. The lessee, El Fuerte, argued it did not create the dangerous condition, did not violate any statute or ordinance, and the lease imposed no duty to repair the sidewalk. With regard to the liability of the abutting property owner, the court noted that, although a curb cut and pedestrian ramp leading from a sidewalk to the street are not the responsibility of the abutting property owner, the defect here was not in the curb cut or ramp:

… [A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty … . * * * … [A] provision of a lease which obligates a tenant to repair a sidewalk does not impose on the tenant a duty to a third party, such as the plaintiff. Martin v Rizzatti, 2016 NY Slip Op 05797, 2nd Dept 8-17-16

NEGLIGENCE (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/MUNICIPAL LAW (SIDEWALK SLIP AND FALL, LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/LANDLORD-TENANT (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SIDEWALKS (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SLIP AND FALL (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)

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INVESTIGATION OF CHILD ABUSE IS A DISCRETIONARY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION.

The Second Department determined the City of New York was immune from a suit alleging the negligent investigation of child abuse, leading to the child’s death two years later. The court also noted that New York does not recognize a cause of action for negligent investigation or prosecution:

… [T]he defendants contended and established that they engaged in discretionary conduct in investigating the report of abuse in 2003, and thus cannot be held liable for the manner in which the investigation was performed under the doctrine of governmental immunity … . A government’s performance of a governmental function, when discretionary in nature, cannot result in liability .. . Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results” … . The defendants demonstrated that the subject investigation consisted of a series of discretionary acts … , and that this was not a situation in which no discretion or judgment was exercised. In any event, the defendants also demonstrated their prima facie entitlement to judgment as a matter of law by establishing that New York does not recognize a cause of action sounding in negligent investigation or negligent prosecution … . Hines v City of New York, 2016 NY Slip Op 05794, 2nd Dept 8-17-16

NEGLIGENCE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/MUNICIPAL LAW (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/GOVERNMENTAL IMMUNITY (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/CHILD ABUSE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)/NEGLIGENT INVESTIGATION OF CHILD ABUSE (INVESTIGATION OF CHILD ABUSE IS A DISCRETIONAY ACT, CITY CAN NOT BE SUED FOR NEGLIGENT INVESTIGATION; NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR NEGLIGENT INVESTIGATION)

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CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED.

The Second Department, reversing Supreme Court, determined the child support provisions of a stipulation of settlement (divorce) should have been vacated because the provisions did not comply with the Child Support Standards Act (CSSA):

Domestic Relations Law § 240(1-b)(h) requires a stipulation of settlement providing for a parent’s obligation to pay basic child support to contain recitals that the parties were advised of the CSSA and “that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded.” In the event that the stipulation of settlement deviates from the basic child support obligation provided for in the CSSA, the stipulation must also “specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount” (Domestic Relations Law § 240[1-b][h]). Child support provisions in stipulations or agreements that do not contain these recitals are invalid and unenforceable … .

Here, the child support provision in the parties’ stipulation of settlement did not include a calculation of basic child support pursuant to the CSSA or a recital that such calculation would result in the presumptively correct amount of child support … . In addition, that provision makes no distinction between the defendant’s obligation to pay basic child support and his obligation to pay other support for the child not required by statute, such as the child’s college tuition and other expenses incurred by the child after his 21st birthday. Young v Young, 2016 NY Slip Op 05809, 2nd Dept 8-17-16

 

FAMILY LAW (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED)/CHILD SUPPORT STANDARDS ACT (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED)

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PROVISIONS OF POLICY MANUAL DID NOT CONSTITUTE ENFORCEABLE OBLIGATIONS.

The Second Department, reversing Supreme Court, determined defendants’ summary judgment motion should have been granted. Plaintiff employee’s argued they were entitled to severance pay in accordance a policy manual. Policy manuals which can be amended or withdrawn unilaterally do not obligate the employer unless there is a regular practice and reliance:

Provisions contained in company policy manuals which, like the one in this case, can be amended or withdrawn unilaterally, do not constitute enforceable obligations owing from an employer to its employees absent a showing of a regular practice by the employer to provide the benefits now claimed, the employee’s knowledge of the practice, and his or her reliance upon such practice as evidenced by accepting or continuing employment as a result thereof … . Cohen v National Grid USA, 2016 NY Slip Op 05786, 1st Dept 8-17-16

EMPLOYMENT LAW (PROVISIONS OF POLICY MANUAL DID NOT CONSTITUTE ENFORCEABLE OBLIGATIONS)/POLICY MANUAL (EMPLOYMENT LAW, PROVISIONS OF POLICY MANUAL DID NOT CONSTITUTE ENFORCEABLE OBLIGATIONS)

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